Citation Nr: 0919266
Decision Date: 05/22/09 Archive Date: 05/26/09
DOCKET NO. 06-08 609 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to re-instatement of Improved Death Pension as of
May 1, 2005.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
LouElla Kuta, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1950 to August
1952. The appellant in this matter is the Veteran's widow.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a July 2004 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Columbia, South
Carolina, which denied the benefit sought on appeal.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The Board observes that the issue of entitlement to service
connection for cause of the veteran's death was denied in an
April 2006 rating decision. The claims file does not contain a
notice of disagreement filed with agency of original
jurisdiction on this issue and therefore, it is not currently
before the Board.
FINDINGS OF FACT
1. The Veteran died in 1996.
2. The Veteran's death certificate lists the cause of death as
metastic carcinoma of the rectum.
3. At the time of the Veteran's death, he was service-
connected for residuals of shrapnel wounds of the upper chest
with retained foreign bodies, evaluated at 20 percent
disabling, effective September 21, 1955.
4. In a May 1996 rating decision, the Veteran was granted
entitlement to a nonservice-connected pension and a special
monthly pension based on the need for aid and attendance,
effective April 23, 1996, as the Veteran was determined to be
unable to secure and follow a substantially gainful occupation
due to disability, and evidence indicated the Veteran needed
daily assistance in performing routine activities.
5. There is no medical evidence associated with the file that
indicates a service-connected disability was the immediate or
underlying cause of the Veteran's death, or that a service-
connected disability contributed substantially or materially to
cause death, or combined to cause death or aid or lend
assistance to the production of death.
6. The Veteran was not continuously rated as totally disabled
for over 10 years.
7. The appellant's annual income exceeds the maximum annual
income for death pension benefits for a surviving spouse
without children.
CONCLUSION OF LAW
The criteria for entitlement to re-instatement of Improved
Death Pension benefits as of May 1, 2005 have not been met. 38
U.S.C.A. §§ 1318, 1541, 5103A, 5107(b), 5108 (West 2002 & Supp.
2007); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.15, 3.22, 3.102, 3.159,
3.203 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Duty to Notify and Assist
The appellant's claims have been considered with respect to
VA's duties to notify and assist. Under the circumstances
presented in this case, however, it is not the factual evidence
that is dispositive of the present appeal, but rather the
application of the law and regulations to the undisputed facts.
In such cases, the duty to assist is not applicable. See Dela
Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (regarding
entitlement to recognition as surviving spouse for purposes of
reinstatement of death pension benefits, neither duty to assist
nor duty to notify are implicated when question is limited to
interpretation and application of a statute).
Because the law as mandated by statute, and not further
development of evidence, is dispositive of this appeal, further
assistance is unnecessary. Mason v. Principi, 16 Vet. App. 129
(2002).
The Merits of the Claim
The Board initially notes that the appellant filed a claim of
entitlement to service connection for cause of death in April
2005. In an April 2006 rating decision, the RO denied the
appellant's claim. A notice of disagreement and substantive
appeal is not associated with the claims file (in contrast to
the May 2009 brief statement submitted by the appellant's
representative), and as such, this issue presently is not
before the Board for adjudication.
In a July 2004 decision, the RO addressed the appellant's claim
of entitlement to death pension benefits, dependency and
indemnity compensation (DIC), and accrued benefits. In the
March 2006 statement of the case, the RO recharacterized the
issue as entitlement to re-instatement of improved death
pension benefits. The Board will address the issues of
entitlement to death pension benefits and DIC.
Under 38 C.F.R. § 3.3, basic entitlement to death pension
benefits exists if the Veteran was, at time of death, receiving
or entitled to receive compensation or retired pay for a
service-connected disability based on service during a period
of war, and the surviving spouse meets the net worth
requirements of 38 C.F.R. § 3.274 and has an annual income not
in excess of the applicable maximum annual pension rate
specified in 38 C.F.R. §§ 3.23, 3.24.
The Veteran was receiving compensation due to service-connected
disability based on war service. Therefore, to determine
entitlement, the only question is whether the appellant has
excessive income.
The surviving spouse of a Veteran who meets the wartime service
requirements will be paid the maximum rate of pension, reduced
by the amount of her countable income. 38 C.F.R. §§ 3.23,
3.273. Payments from any kind from any source shall be counted
as income during the 12-month period in which received, unless
specifically excluded under 38 C.F.R. § 3.272. Nonrecurring
income (income received on a one-time basis) will be counted,
for pension purposes, for a full 12-month period following
receipt of the income. 38 C.F.R. § 3.271(c).
In order for the appellant not to have excessive income, it
must be determined that the appellant's income is not in excess
of the maximum annual pension rate (MAPR) specified in 38
C.F.R. § 3.23. The MAPR is published in Appendix B of VA Manual
M21-1 (M21-1) and is to be given the same force and effect as
published in VA regulations. 38 C.F.R. § 3.21. The MAPR is
revised every December 1st and is applicable for the following
12-month period. As noted in the March 2006 statement of the
case notifying the appellant of the continuation of the denial
of entitlement to nonservice-connected death pension benefits,
the applicable MAPR then in effect for a surviving spouse with
no dependents was $6,814.00. See 38 C.F.R. § 3.23(a)(5); M21-1,
Part I, Appendix B.
Income from Social Security Administration (SSA) benefits is
not specifically excluded under 38 C.F.R. § 3.272 and therefore
is included as countable income. Certain un-reimbursed medical
expenses (in excess of five percent of the MAPR) may be
excluded from countable income for the same 12- month
annualization period to the extent they were paid. 38 C.F.R. §
3.272.
The Veteran's widow was receiving Social Security benefits
totaling $7,596.00 for 2004. The RO noted the appellant paid
the funeral expenses for her husband of $5,000.00 and the RO
was able to reduce countable income dollar for dollar for one
year from May 1, 2004 to May 1, 2005. This reduction made the
appellant's countable income $2,596.00 for one year. The RO
subtracted the appellant's countable income from the maximum
annual pension rate of $6,634.00, leaving $4,038.00 and
allowing for payment of $336.00 for 12 months. As of December
1, 2004, the maximum annual pension rate was increased to
$6,814.00, but the appellant's Social Security benefits were
raised to $7,800.00 effective December 1, 2004. The appellant
was requested to fill out VA Form 21-8416 to report any medical
expenses; however, no such response was received.
The Board finds that entitlement to nonservice-connected death
pension benefits is not warranted. The appellant has income in
excess of the MAPR, $6,814.00.
Therefore, although the Veteran had wartime service, and was
receiving compensation for a service-connected disability, the
appellant's income is excessive for purposes of entitlement to
nonservice-connected death pension.
Additionally, in regard to Dependency and Indemnity
Compensation (DIC), Section 1318 of title 38, United States
Code, authorizes payment of DIC to a benefits-eligible
surviving spouse in cases where a Veteran's death was not
service-connected, provided the Veteran was in receipt of or
entitled to receive compensation at the rate of 100 percent
(total rating) due to service-connected disability for a period
of ten or more years immediately preceding death. The statute
was implemented at 38 C.F.R. § 3.22. However, although the
Veteran was service connected, he was not service connected at
the rate of 100 percent due to his service-connected
disability.
The Veteran was service-connected for residuals of shrapnel to
the upper chest with retained foreign bodies, evaluated as 20
percent disabling, effective September 21, 1955.
Since the Veteran was not in receipt of or entitled to receive
compensation at the rate of 100 percent (total rating) due to
service-connected disability for a period of ten or more years
immediately preceding his death, the appellant is not entitled
to DIC in this case under the provisions of 38 U.S.C.A. § 1318.
Based on the foregoing, the appellant's DIC claim must be
denied as a matter of law. As the disposition of this claim is
based on the law, and not the facts of the case, the claim must
be denied based on a lack of entitlement under the law. See
Mason v. Principi, 16 Vet. App. at 132; Sabonis v. Brown, 6
Vet. App. 426, 430 (1994).
As the preponderance of the evidence is against of the
appellant's claim, as discussed above, the benefit of the doubt
doctrine is not for application. Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
ORDER
Entitlement to re-instatement of Improved Death Pension as of
May 1, 2005 is denied.
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs